939.48 NoteJudicial Council Note, 1988: Sub. (3) is amended by conforming references to the statute titles as affected by this bill. [Bill 191-S]

939.48 Annotation
When a defendant testified that he did not intend to shoot or use force, he could not claim self-defense. Cleghorn v. State, 55 Wis. 2d 466, 198 N.W.2d 577 (1972).

939.48 Annotation
Sub. (2) (b) is inapplicable to a defendant if the nature of the initial provocation is a gun-in-hand confrontation of an intended victim by a self-identified robber. Under these circumstances the intended victim is justified in the use of force in the exercise of the right of self-defense. Ruff v. State, 65 Wis. 2d 713, 223 N.W.2d 446 (1974).

939.48 Annotation
Evidence of prior specific instances of violence that were known to the accused may be presented to support a defense of self-defense. The evidence is not limited to the accused's own testimony, but the evidence may not be extended to the point that it is being offered to prove that the victim acted in conformity with his or her violent tendencies. State v. Daniels, 160 Wis. 2d 85, 465 N.W.2d 633 (1991).

939.48 Annotation
The reasonableness of a person's belief under sub. (1) is judged from the position of a person of ordinary intelligence and prudence in the same situation as the defendant, not a person identical to the defendant placed in the same situation as the defendant. A defendant's psycho-social history showing past violence toward the defendant is generally not relevant to this objective standard, although it may be relevant, as in spousal abuse cases, where the actors are the homicide victim and defendant. State v. Hampton, 207 Wis. 2d 369, 558 N.W.2d 884 (Ct. App. 1996).

939.48 Annotation
The right to resist unlawful arrest is not part of the statutory right to self-defense. It is a common law privilege that is abrogated. State v. Hobson, 218 Wis. 2d 350, 577 N.W.2d 825 (1998), 96-0914.

939.48 Annotation
While there is no statutory duty to retreat, whether the opportunity to retreat was available goes to whether the defendant reasonably believed the force used was necessary to prevent an interference with his or her person. A jury instruction to that effect was proper. State v. Wenger, 225 Wis. 2d 495, 593 N.W.2d 467 (Ct. App. 1999), 98-1739.

939.48 Annotation
When a defendant fails to establish a factual basis to raise self-defense, prior specific acts of violence by the victim have no probative value. The presentation of subjective testimony by an accused, going to a belief that taking steps in self-defense was necessary, is not sufficient for the admission of self-defense evidence. State v. Head, 2000 WI App 275, 240 Wis. 2d 162, 622 N.W.2d 9, 99-3071.

939.48 Annotation
Although intentionally pointing a firearm at another constitutes a violation of s. 941.20, under sub. (1) a person is privileged to point a gun at another person in self-defense if the person reasonably believes that the threat of force is necessary to prevent or terminate what he or she reasonably believes to be an unlawful interference. State v. Watkins, 2002 WI 101, 255 Wis. 2d 265, 647 N.W.2d 244, 00-0064.

939.48 Annotation
A defendant asserting perfect self-defense against a charge of 1st-degree murder must meet an objective threshold showing that he or she reasonably believed that he or she was preventing or terminating an unlawful interference with his or her person and that the force used was necessary to prevent imminent death or great bodily harm. A defendant asserting the defense of unnecessary defensive force s. 940.01 (2) (b) to a charge of 1st-degree murder is not required to satisfy the objective threshold showing. State v. Head, 2002 WI 99, 255 Wis. 2d 194, 648 N.W.2d 413, 99-3071.

939.48 Annotation
When a defendant successfully makes self-defense an issue, the jury must be instructed as to the state's burden of proof regarding the nature of the crime, even if the defense is a negative defense. Wisconsin JI-Criminal 801 informs the jury that it "should consider the evidence relating to self-defense in deciding whether the defendant's conduct created an unreasonable risk to another. If the defendant was acting lawfully in self-defense, [his] conduct did not create an unreasonable risk to another." This instruction implies that the defendant must satisfy the jury that the defendant was acting in self-defense and removes the burden of proof from the state to show that the defendant was engaged in criminally reckless conduct. State v. Austin, 2013 WI App 96, 349 Wis. 2d 744, 836 N.W.2d 833, 12-0011.

939.48 Annotation
When the circuit court instructed the jury to "consider the evidence relating to ... defense of others, in deciding whether defendant's conduct created an unreasonable risk.... If the defendant was acting lawfully in defense of others, his conduct did not create an unreasonable risk to another," the instruction on the state's burden of proof on defendant's defense of others defense was wholly omitted and the instructions were erroneous. State v. Austin, 2013 WI App 96, 349 Wis. 2d 744, 836 N.W.2d 833, 12-0011.

939.48 Annotation
Sub. (1m) does not justify continued use of deadly force against an intruder when that intruder is no longer in the actor's dwelling. The applicable definition of the actor's dwelling, s. 895.07 (1) (h), requires that the part of the lot or site in question be "devoted to residential use." While s. 895.07 (1) (h) lists several parts of a residential lot that are part of a "dwelling," it does not include a parking lot. The common denominator of the listed parts of dwellings is that all are property over which the actor has exclusive control. An apartment building parking lot is not exclusive to one tenant or devoted to the residential use of any one tenant. State v. Chew, 2014 WI App 116, ___ Wis. 2d ___, ___ N.W.2d ___, 13-2592.

939.48 Annotation
A person may employ deadly force against another, if the person reasonably believes that force is necessary to protect a 3rd-person or one's self from imminent death or great bodily harm, without incurring civil liability for injury to the other. Clark v. Ziedonis, 513 F. 2d 79 (1975).

939.49(1)(1) A person is privileged to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with the person's property. Only such degree of force or threat thereof may intentionally be used as the actor reasonably believes is necessary to prevent or terminate the interference. It is not reasonable to intentionally use force intended or likely to cause death or great bodily harm for the sole purpose of defense of one's property.

939.49(2)(2) A person is privileged to defend a 3rd person's property from real or apparent unlawful interference by another under the same conditions and by the same means as those under and by which the person is privileged to defend his or her own property from real or apparent unlawful interference, provided that the person reasonably believes that the facts are such as would give the 3rd person the privilege to defend his or her own property, that his or her intervention is necessary for the protection of the 3rd person's property, and that the 3rd person whose property the person is protecting is a member of his or her immediate family or household or a person whose property the person has a legal duty to protect, or is a merchant and the actor is the merchant's employee or agent. An official or adult employee or agent of a library is privileged to defend the property of the library in the manner specified in this subsection.

939.49(3)(3) In this section "unlawful" means either tortious or expressly prohibited by criminal law or both.

939.49 Annotation
Flight on the part of one suspected of a felony does not, of itself, warrant the use of deadly force by an arresting officer, and it is only in certain aggravated circumstances that a police officer may shoot a fleeing suspect. Clark v. Ziedonis, 368 F. Supp. 544 (1973).

939.60 Annotation
When a statutory offense does not specify a place of confinement, a sentence of one year may be to either the county jail or the state prisons. All crimes punishable by imprisonment in the state prisons are classified as felonies. State ex rel. McDonald v. Douglas County Circuit Ct. 100 Wis. 2d 569, 302 N.W.2d 462 (1981).

2013-14 Wisconsin Statutes updated through 2013 Wis. Act 380 and all Supreme Court Orders entered before March 1, 2015. Published and certified under s. 35.18. Changes effective after March 1, 2015 are designated by NOTES. (Published 3-1-15)